for if an action is brought and discontinued, and the five years elapse before another action is brought, the non-claim will be a bar. But an entry or action is necessary only when a title is legal.

In cases of fines levied of trust estates, the fine, as against the cestui que trust, must be avoided by a bill in equity; at least, unless the legal effect of the fine is avoided by the entry or action of the trustee; and if the trust affects the land and not the person, the proper remedy is an entry or action by or in the name of the trustee. But on this point

query, and see 1 Cruise, 303.

So the fine itself may be avoided for error in the fine, andi f the fine is avoided, the proclamations, and consequently the operation of the fine as a bar by non-claim, are also avoided. (k)

So if there is any irregularity in the proclamations, though the fine remains in force, () it cannot have any effect under the statute of non-claim; and in the case of a fine levied in Westminster-hall, of lands in ancient demesne the fine may be avoided by writ of disceit.

But on the rule propounded by Lord Ba

(k) 1 Dyer, 216, a.

(4) Ibid.

con,

non potest adduci exceptio ejusdem rei " cujus petitur dissolutio," no non-claim will run against the lord upon this particular fine; (m) but if a second fine is levied of these lands in the court at Westminster, the proclamations on this fine and non-claim for five years, will bar the lord of his remedy by a writ of disceit. (n)

A fine to be avoided by a writ of error is merely voidable; but a fine levied in a court which has no jurisdiction (as in the case of a fine levied in the court of Westminster of lands within a peculiar jurisdiction, as the county Palatine, &c.) is actually void; and a fine which is actually void (0) can never be a bar by non-claim, nor is an entry or claim necessary on account of the fine.

It remains only to be observed, that care should be taken to see that the proclamations appear regular on the record, and pursuant to the statute; and as the proclamations can be made only under the statute, a fine levied in some courts, as courts of ancient demesne, &c. cannot be proclaimed, and, as a

(m) Cockman v. Farrer, 7 Lord Raym. 461. Zouch . Thompson, 1 Lord Raym. 177.

(n) Wright's case, Owen 21. Plowd. 370, b; 2 Inst. 518. (0) 2 Inst. 557; 4 Inst. 206.

consequence, they cannot operate either by non-claim, or as a bar to the issue in tail. (p)

In the observations already offered on fines, a summary view has been taken of this important learning. The student is recommended to pursue the subject in those books which are written professedly on this

ássurance.

With a view to the immediate business of the practical conveyancer, the following points will be considered:

1. By whom

2. To whom f

a fine may be levied.

S: In what court.
4.-On what writs.
5. Of what parcels.

6. By what name.

7.The parts of a fine.

8-At what time a fine is complete,
First, As a conveyance.

Secondly, As operating under the statute of proclamations, either as a bar to issue in tail, or by non-claim.

9.-The difference between a fine, as
First, A conveyance.

(p) Hunt v. Bourne, 1 Salk. 339.

Secondly, An estoppel.

Thirdly, A bar to issue in tail.

Fourthly, A bar under the statutes of nonclaim.

10. On what fines uses may be declared. 11. By whom the uses of a fine may be declared.

12.-Of resulting uses.

13. Of deeds leading, and

14. Of deeds declaring the uses of a fine.

First, With the exception of the king, and corporations aggregate of many, a fine may be levied by all persons either alone or jointly with others; even infants, idiots, and married women, may levy fines. But infants or idiots ought not to be per mitted to levy a fine (with the exception of an infant who is a trustee within the provisions of the 7 Anne, c. 19.) (q) but, having levied a fine, it will be good, (r) except that an infant may, during his minority, reverse a fine levied by him while an infant. (s) The trial of infancy must be by inspection of the judges of the court in which the fine is levied; but

(9) Ex parte Mair, 3 Atk. 479.

(7) Cavendish v. Worsley Lanter et al,cited, 12 Rep. 122. (s) 17 Ass. 17, 2 Roll Abr. 15. Anne Hungate's case. 12 Co. 122.

the court will receive evidence, by examination of witnesses, as the godfather and godmother, (t) church books, &c. (v) to assist their judgment; and if the inspection takes place during the minority, the reversal founded on that inspection may be subsequent to the period of majority; (y) and either by the party himself or his heir; and by the heir, notwithstanding the conusor dies during minority; and to secure to the infant the benefit of his non-age, the inspection may be recorded before the fine is engrossed. In case an infant becomes adult, or dies before inspection, the heir is without remedy. (z)

The fine of idiots is also binding on thetr and their heirs, and there are not any legal means of avoiding this fine; and although the conusor in the fine is found to have been an idiot, a nativitate, (a) the fine will be deemed good at law and it is immaterial, whether the fine is obtained from an idiot, or from a person under a temporary depri vation of intellect; for the law is the same with regard to those who have lost their

(t) Bro. Ab. Error, pl. 60.

(v) 2 R. Abr. Anne Hungate's case, 12 Co. 122.
(y) Co. Litt. 131. Kekewich's case.

(z) 2 R. A. 15, 12 Co. 122.

(a) Mansfield's case, 12 Co. 123.